P. v. Morcillo
Filed 7/9/12 P.
v. Morcillo CA2/8
California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
VANESSA V.
MORCILLO,
Defendant and Appellant.
B234207
(Los Angeles County
Super. Ct. No.
KA092142)
APPEAL from the judgment of the Superior Court of
County. Tia Fisher,
Judge. Affirmed.
Linn Davis, under appointment by the
Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Michael R. Johnson and Lauren E. Dana, Deputy Attorneys
General, for Plaintiff and Respondent.
* * * * * * * * * *
Defendant and
appellant Vanessa V. Morcillo was convicted by jury of one count of
Defendant’s sole contention on appeal is that the trial court committed
prejudicial error in refusing to instruct the jury on the lesser included
offense of theft as to the robbery count.
We find no instructional error and affirm.
Defendant Morcillo and codefendant Daniel Ibarra (who is not a party
to this appeal) dated for a period of time and have three children
together. In August 2010, they were no
longer dating and Ibarra had recently ended a seven-month relationship with the
victim, to whom we will refer as Jane Doe to protect her privacy. About a week before the charged incident,
Jane Doe went with Ibarra’s sister, Sandra, to Ibarra’s brother’s house to
visit. Ibarra and defendant Morcillo
were at the brother’s house already.
While Jane Doe and Sandra were still outside, defendant Morcillo began
sending unpleasant texts to Jane Doe. At
some point, defendant Morcillo and Ibarra came outside, and Ibarra told Jane
Doe to leave. They argued for a bit,
then Ibarra hit Jane Doe and threw her to the ground. Ibarra and defendant Morcillo left. The police were called, but Jane Doe declined
to speak with the police, leaving Sandra to speak with them instead.
Jane Doe did not have any contact with Ibarra or defendant Morcillo
for a week. On August 28, Jane Doe began
to receive repeated phone calls and texts from Ibarra, most of which she
ignored. However, she did respond to a
few of his calls. Ibarra claimed he
wanted to apologize for what happened and wanted Jane Doe to meet with
him. Jane Doe refused. Later, when she went shopping, she saw Ibarra
driving behind her. He pulled alongside
of her car and yelled at her to pull over.
She was scared of him because he had hit her before, and she pulled over
to the side of the road out of fear.
They both got out of their cars and Ibarra coerced Jane Doe to go
with him in his car. Ibarra told her,
“Shorty, you know I’m always strapped.â€
Jane Doe, whose nickname was “Shorty,†understood that to mean he was
carrying a gun and she knew he usually did have one, although she did not see
one on him that day. Jane Doe took her
purse with her, which had a shoulder strap, containing her wallet, keys, camera
and cell phone.
Ibarra and Jane Doe drove to a
neighborhood park, where Ibarra pulled in and parked near some public
restrooms. He got out of the car
claiming he had to use the restroom.
Before reaching the restroom door, Ibarra turned back and called to Jane
Doe to come hold his cell phone and keys.
As Jane Doe approached Ibarra near the entrance to the restroom, he made
a gesture like he was going to hug her, but then he quickly shoved her into the
men’s restroom, simultaneously “yanking†her purse off of her shoulder.
Inside the restroom, defendant Morcillo and Ibarra’s 14-year-old
sister A.I. were waiting. Defendant
Morcillo said, “What’s up Shorty?†and then immediately grabbed Jane Doe’s hair
while A.I. started hitting and kicking her.
Defendant Morcillo began to punch Jane Doe in the face with one hand
while holding onto her hair with the other hand. Jane Doe heard Ibarra say “get her in the
face.†Jane Doe fell to the ground and
tried to block her face from being kicked.
She believed Ibarra kicked her at least once while defendant Morcillo
and A.I. were attacking her. She heard
Ibarra say, “I told you, bitch, I was no little bitch.†Defendant Morcillo broke something that felt
like glass over the back of Jane Doe’s head.
The attack lasted maybe “five minutes.â€
Ibarra, A.I. and defendant Morcillo then left the restroom together with
Jane Doe’s purse. She heard them
“burning tire†in the parking lot.
Jane Doe got up and found two individuals in the park who let her
use their cell phone to call a friend for help.
She had a bruised and swollen eye, and multiple cuts and bruises to her
ear, elbow, ribs and legs. Jane Doe
contacted the police when she got home, but did not seek medical treatment for
her injuries.
Defendant Morcillo was charged by
amended information with one count of assault by means likely to produce great
bodily injury (Pen. Code,
§ 245, subd. (a)(1)) and one count of robbery (§ 211). The two counts were jointly charged against
codefendant Ibarra, who was also charged with kidnapping, corporal injury to a
former cohabitant, and possession of a controlled substance. A.I. was separately prosecuted as a
juvenile. Neither Ibarra nor A.I. are
parties to this appeal, and we will not discuss the prosecutions against them
here. It was specially alleged that in
the commission of the assault, defendant Morcillo used a deadly and dangerous
weapon, a glass object (§ 12022, subd. (b)(1)).
Defendant Morcillo pled not guilty to both charges.
During a discussion of jury
instructions, counsel for defendant Morcillo requested a lesser included
instruction on theft as to the robbery count on the grounds the evidence showed
codefendant Ibarra took the purse from the victim, not defendant Morcillo. After entertaining argument, the court
declined to give the instruction, explaining that “[if defendant Morcillo]
aided and abetted the taking of the property, the taking was by force. . .
. [T]here’s no set of circumstances or
scenario where that wasn’t forcible.â€
The jury found defendant Morcillo guilty of assault and second
degree robbery of Jane Doe. Before the
case was submitted to the jury, the court granted the prosecution’s motion to
dismiss the personal use allegation. The
court made a finding that, given the prior history of
Morcillo and codefendant Ibarra, the interests of justice warranted
probation. Imposition of sentence was
suspended, and defendant Morcillo was placed on three years formal probation
and ordered to serve 110 days in county jail. Defendant was credited with 110 days of
custody credits and ordered to pay various fines and restitution. This appeal followed.
Defendant Morcillo contends the
court committed prejudicial error in refusing her request for a jury
instruction on theft as a lesser included offense to robbery. We independently
review whether the trial court erred in failing to instruct on a lesser
included offense. (People v. Booker (2011) 51 Cal.4th 141, 181.) We conclude the court did not err.
A trial court has a duty to instruct
on lesser included offenses supported by substantial evidence in the
record. (People v. Breverman (1998) 19 Cal.4th 142, 154-155, 162.) “[T]he existence of ‘any evidence, no matter how weak’ will not justify instructions on
a lesser included offense, but such instructions are required whenever evidence
that the defendant is guilty only of the lesser offense is ‘substantial enough
to merit consideration’ by the jury.
[Citations.] ‘Substantial
evidence’ in this context is ‘“evidence from which a jury composed of
reasonable [persons] could . . . conclude[]â€â€™ that the lesser offense, but not
the greater, was committed.†(
Robbery is defined as “the felonious
taking of personal property in the possession of another, from his person or
immediate presence, and against his will, accomplished by means of force or
fear.†(Pen. Code, § 211.) Theft is a lesser included charge as it
contains all of the elements of robbery except the element of force or fear. (People
v. Burns (2009) 172 Cal.App.4th 1251, 1256 (Burns); accord, People v.
Jones (1992) 2 Cal.App.4th 867, 869 (Jones).)
To rise to the level of robbery,
force or fear must be shown. (People
v. Reade (1961) 197 Cal.App.2d 509, 510 (Reade).) The force used need
only be greater than the amount required to accomplish a mere seizure or to
overcome the victim’s resistance. (
Cal.App.4th at p. 1259.) The
testimony of Jane Doe, the victim, was unequivocal that force was used against
her in the taking of her purse. She said
it was “yanked†off her shoulder and that she was simultaneously shoved into
the restroom. Immediately after being
shoved, Jane Doe was assaulted by defendant Morcillo and A.I. who were waiting
in the restroom.
Defendant argues Jane Doe’s
testimony contained inconsistencies about how the purse was taken from her
(when and by whom), that the alleged force used was a mere “snatching†of a
purse that could only amount to theft, and was so minimal that Jane Doe could
not even accurately and consistently recount how the taking occurred. Defendant’s arguments are without merit.
Jane Doe testified at trial that
Ibarra shoved her into the restroom, simultaneously yanking her purse from her
shoulder, that defendant Morcillo and A.I. immediately attacked her, that she
was unable to defend herself or attempt to retrieve her purse as she fell to
the ground and tried to block her face from the attack, that she was assaulted
for approximately five minutes, and that all three defendants then fled
together with her purse.
On cross-examination, Jane Doe
admitted that she testified at the preliminary hearing that A.I. may have been
the one to take her purse. The following
colloquy from her prior testimony was read into the record:
“Question: Earlier you said
you thought it was A.I. who took your purse . . . . Why did you think that?
“Answer: Because everything
happened so fast. I didn’t know.
“Question: Did you have your
purse when [A.I.] was attacking you?
“Answer: No, he had yanked it
from me.
“Question: Why did you think
A.I. had taken it? [¶] . . .
[¶]
“Answer: I don’t know. But he had yanked it from me when he pushed
me to the restroom.â€
When asked if she recalled telling a police officer that “theyâ€
yanked it away from her during the assault, Jane Doe said she did not recall
saying that. On redirect, she reiterated
that Ibarra yanked the purse from her.
There were no material inconsistencies in Jane Doe’s testimony regarding
the physical assault, including that she was helpless on the ground, simply
trying to block her face from being kicked.
She admitted she did not see who actually carried the purse away when
the three fled the scene, and that she did not recall seeing defendant Morcillo
with it. When she got up to leave
however, her purse was not on the floor of the restroom and she never recovered
her purse or its contents.
The prosecutor argued that defendant Morcillo aided and abetted
Ibarra in the robbery, and the jury was duly instructed on aiding and abetting
liability, including with CALCRIM Nos. 400, 401 and 1603.
The yanking of the purse from Jane Doe, accompanied by the shove and
the subsequent immediate assault is more than sufficient to support the jury’s
finding that defendant Morcillo was guilty of aiding and abetting the robbery of
Jane Doe. (See Burns, supra, 172
Cal.App.4th at pp. 1257, 1259 [act of wresting purse away from victim while
stepping on her foot as she attempted to hold on was sufficient force to
support robbery and court did not err in refusing to instruct on theft];
where victim’s uncontradicted testimony showed that grabbing of purse resulted
in minor injury to her finger and shoulder]; see also Reade, supra, 197
Cal.App.2d at pp. 511-512 [pushing of victim after snatching envelope
containing cash, causing victim to fall to floor sufficient to support robbery
charge].)
Moreover, nothing in Jane Doe’s testimony supports a version of the
taking as a mere theft without force. If
the jury believed the prosecution’s evidence, the jury could only reasonably
conclude that the taking of the purse was accomplished with force, and that
additional force was used thereafter, primarily by defendant Morcillo, which
prevented Jane Doe from fighting back and allowed Ibarra, defendant Morcillo
and A.I. to flee the scene with the purse.
Moreover, it is well-established that even where the evidence of the
initial taking arguably could support a finding of theft, the use of force to
retain the property or to effectuate an escape transforms a theft into
robbery. “The act of ‘taking’ begins
when the separation of the victim from his or her property occurs, and it
continues through the forcible consummation.â€
(People v. Webster (1991) 54
Cal.3d 411, 442; People v. Winkler
(1986) 178 Cal.App.3d 750, 756.)
The record does not contain
evidence, that defendant Morcillo was guilty of theft but not of robbery. The trial court therefore correctly denied
defendant’s request for the lesser included instruction. (People
v. DePriest (2007) 42 Cal.4th 1, 50-51 [no error in refusing lesser
included theft instruction where evidence supported robbery and no substantial
evidence supported theory that intent to steal victim’s car was only formed
after shooting of victim].)
DISPOSITION
The judgment is
affirmed.
OFFICIAL REPORTS
GRIMES,
J.
We concur:
BIGELOW, P. J. RUBIN, J.
